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[2021] ZAGPPHC 49
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Masuka v Tshwane Metropolitan Municipality (1751/2021) [2021] ZAGPPHC 49 (28 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
28-01- 2021
Case
Number
: 1751/2021
In
the matter between:
ALEX
MASUKA
APPLICANT
and
TSHWANE
METRO POLICE DEPARTMENT
RESPONDENT
JUDGMENT
KUBUSHI
J,
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
The applicant, Alex Masuka, approached court on urgency for an
interdictory order to restrain
the respondent, Tshwane Metro Police
Department (“Metro Police”) in particular its Director
Nkwashu's actions in obstructing
or defeating the ends of justice
against the applicant's family having a sleeping protest at the
United Nations High Commissioner
for Refugees’ (“the
UNHCR’s”) office, in Brooklyn Pretoria. The order sought
is in essence to restrain
the Metro Police from removing the
applicant and his family from camping and/or sleeping outside the
UNHCR office pending the application
launched by the applicant with
the UNHCR for his removal from South Africa to another country due to
insecurity reasons he experiences
in South Africa.
[2]
The applicant appeared before court without legal representation and
had prepared and filed his
papers without legal assistance. It was
determined before the commencement of the hearing that he will be
able to represent himself
and that he does not require the services
of a legal representative nor that of an interpreter.
[3]
The application was initially set down for hearing on 25 January 2021
on strictly truncated times
lines. It is not in dispute that the
matter is urgent. However, leave was granted the Metro Police to file
its answering affidavit
and for the applicant to reply thereto. As
such the matter stood down to be heard on 27 January 2021. Due to the
fact that the
applicant was unrepresented the virtual hearing of the
matter was allowed.
[4]
The applicant, when filing his replying affidavit also filed a
supplementary affidavit. It was
explained to the applicant that for
the supplementary affidavit to be admitted into evidence he has to be
allowed by the court
to file same, on application. The applicant had
either to proceed with the main application without the supplementary
affidavit
or to have the matter stand down further to allow for the
application for leave to file a further affidavit and for the
respondent
to answer thereto. The applicant opted to abandon
the supplementary affidavit and to proceed with the main application.
[5]
Although it is not specifically stated in the founding papers but
from the perusal of the other
documents filed of record and the
arguments during the hearing of the application, it appears that the
applicant is a Zambian citizen
who has been granted refugee status in
South Africa.
[6]
From the email dated 18 January 2021 by the applicant to the UNHCR
attached to his founding affidavit,
the applicant's home in South
Africa is in Dennilton in Limpopo. He and his family fled Limpopo due
to threats made against him
allegedly by the Zambian Government and
members of the SDA church.
[7]
The email, also shows that he has asked for protection against the
people threating him from the
UNHCR and further requested to be
removed from South Africa to another country (not Zambia). It also
appears from the said email
that he has been camping in front of the
UNHCR office for over five months in a form of a protest whilst
awaiting the requested
assistance from the UNHCR.
[8]
Initially on arrival from Limpopo, the UNHCR provided the
applicant and his family with temporary
shelter but since May 2020
the UNHCR failed to pay the rental for the accommodation and the
family was in July 2020 evicted.
[9]
The applicant approached court for assistance in this regard –
the details of that application
are not provided for in the papers
before me. Be as it may, on 10 November 2020 Msimang AJ granted an
order in the following terms:
"1.
That the Applicant [Mr Alex Masuka] be subjected
to a psychosocial evaluation by a registered psychiatrist
as soon as
possible.
2.
That the First Respondent [Minister of Home Affairs] be ordered to
ensure that the United Nations High Commissioner
for Refugees and
other associated organisations comply with the following undertakings
tabled in the First Respondent's report
and to cover the costs for:
(i)
temporary shelter for Mr Masuka's wife and children until
finalisation of this matter;
(ii)
any form of assistance for the children; and
(iii)
the psychosocial evaluation with a registered psychiatrist.
4.
No order as to costs."
[10]
Pursuant to the failure by either Home Affairs and/or UNHCR and/or
the associated organisations to comply
with the above mentioned court
order, the applicant and his family, consisting of thirteen (13)
members in all, have been camping
outside the UNHCR office whilst
waiting to be accommodated by UNHCR as
per
the said court
order.
[11]
According to the applicant he has approached this court for
assistance because the Metro Police, in particular
its Director
Nkwashu, has unjustifiably threatened to remove the applicant and his
family from the place next to the offices of
the UNHCR where they
have been camping and/or sleeping in protest of the failure by the
UNHCR to comply with the court order of
10 November 2020.
[12]
The applicant, without giving enough information, alleges that
Director Nkwashu attempted to kidnap his children
and take them to an
unknown place and has also threatened to remove their blankets and
the tents which are their place of abode.
It is common course that at
the hearing of this application the applicant and his family had
already been removed from their camping
site and the tents taken by
the Metro Police.
[13]
Such action of trying to kidnap the family and take them to an
unknown place is, according to the applicant,
tantamount to defeating
the ends of justice and an unlawful and intentional deprivation of
their freedom of movement and/or the
control over his children.
[14]
The applicant submits further that he cannot be so removed whilst
awaiting the implementation of prayer 2
(i) of the court order of 10
November 2020 which directed Home Affairs to ensure that the UNHCR
and other associated organisations
provide temporary shelter for Mr
Masuka's wife and children until finalisation of that matter.
[15]
The applicant's argument is that the Metro Police cannot do so whilst
the applicant is still awaiting the
response from UNHCR and without
an order of court directing the Metro Police to remove them which is
in contravention of the court
order of 10 November 2020.
[16]
The relief sought by the applicant herein is a prohibitory interdict.
The relief seeks to restrict the respondent
from committing a
threatened wrong or from continuing an existing one. An interdict is
a remedy of a summary and extraordinary
nature, allowed in cases
where a person requires protection against an unlawful interference,
or threatened interference, with
his rights.
[1]
[17]
In this instance the relief sought is an interlocutory interdict. The
relief, if granted, will be granted
pending the finalisation of the
application of the applicant to the UNHCR to remove him from South
Africa to another country.
[18]
The requisite for an interim interdict are well known and need not be
repeated herein. Of the said requirements,
it is my view that the
applicant has not satisfied the requirement of the absence of any
other satisfactory remedy and has not
established either a clear or
prima facie
right to camp and/or sleep outside the office of
the UNHCR.
[19]
The applicant in his own version alleges that there is a court order
granted in his favour on 10 November
2020 directing Home Affairs to
ensure that the UNHCR and other associated organisations provide his
family with temporary accommodation
pending the outcome of the
applicant’s application to the UNHCR. The applicant does not
indicate in the papers filed of record
what initiatives he has taken
to compel Home Affairs and/or the UNHCR and/or any other associated
organisation, to comply with
the said court order. Instead, the
applicant has decided to take the law into his own hands and to
protest by camping and/or sleeping
outside the office of the UNHCR,
as he says, in protest. The applicant must follow the process of the
law and see to it that the
court order of 10 November 2020 is
complied with. He is the one who in the first place approached court
for a remedy which was
granted in the form of that order and must see
it to finality. He can therefore say that he does not have any other
satisfactory
remedy.
[20]
This also is an indication that he has not been able to establish the
right, whether clear of
prima facie
, that allows him to camp
and/or sleep outside the office of the UNHCR, this in contravention
of the City of Tshwane’s By-Laws.
It does not appear from the
papers where exactly the applicant had erected the tents that were
removed by the Metro Police. It
is, however, evident that the tents
were erected outside the UNHCR premises and thus on the road reserve.
[21]
The applicant contends that By-laws permit anyone to legally protest
and the police should protect those
protesting with or without a
permit as long as there is no traffic disturbed or road blocked and
as a refugee he has a right to
protest and do so peacefully and not
infringe on the rights of others. He further contends that at the
time the tents were removed
by the Metro Police they were not
obstructing vehicles.
[22]
It cannot be correct that by camping and/or sleeping on the reserve
road and/or outside the UNHCR office,
the applicant and his family
are not infringing on the rights of others. The reserve road or
pavement or the corner in which he
alleges to have erected the tents,
is not an area zoned for human habitation and by just being there,
the tents and the fact that
there are people dwelling there, are
causing a nuisance to residents in that neighbourhood and the other
passers-by.
[23]
Consequently, the application ought to be dismissed.
[24]
The Metro Police counsel has in argument not insisted on costs in the
event of the Metro Police being successful.
[25]
I make the following order
1.
The application is dismissed.
2.
There is no order for costs.
E.M KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant
in Person
:
Mr Alex Masuka
Respondent’s
Counsel
: Adv. A. Vorster.
First
Respondent’s Attorneys
:
Gildenhuys Malatji Inc.
Date
of hearing
: 27 January 2021
Date
of judgment
: 28
January 2021
[1]
See Erasmus: Superior Court Practice 2ed Volume 2 pD6-1.